Land and Environment Court New South Wales Medium Neutral Citation: Bridgewell and SLD Developments Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1229 Hearing dates: Conciliation conference held 18 February 2022, 17 and 31 March 2022, final agreement filed 31 March 2022 Date of orders: 3 May 2022 Decision date: 03 May 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA0382/21 and rely on the amended plans and documents listed at condition 1 of Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $10,000 within 28 days of these orders. (3) The Applicant's written request, pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for floor space ratio as set out at clause 4.4 of the KLEP, is upheld. (4) The Applicant's written request, pursuant to clause 4.6 of the KLEP, seeking to vary the development standard for site depth as set out at clause 6.6 of the KLEP, is upheld. (5) The appeal is upheld. (6) Consent is granted to Development Application DA0382/21 (as amended) for the demolition of existing structures and construction of a residential apartment building comprising 37 apartments, basement car parking, landscaping and associated works at 4A, 6, 6A, 8 and 10 Maclaurin Parade, Roseville, subject to the conditions of consent contained at Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – floor space ratio – site depth – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016, cl 7.2 Environmental Planning and Assessment Act 1979, ss 2.22, 4.14, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 50, 55 Ku-ring-gai Local Environmental Plan 2015, cll 4.4, 4.6, 5.1, 6.2, 6.3, 6.5, 6.6 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2021) NSW Rural Fire Service, Planning for Bushfire Protection, (November 2019) Category: Principal judgment Parties: Bridgewell and SLD Developments Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: E Whitney (Solicitor) (Applicant) C Morton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2021/291030 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA0382/21 (the DA) by Ku-ring-gai Council (the Respondent). The DA sought consent for the demolition of existing structures and construction of a residential apartment building comprising 40 apartments, basement car parking, landscaping and associated works at 4A, 6, 6A, 8 and 10 Maclaurin Parade, Roseville (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 February, 17 and 31 March 2022. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 1 December 2021, and at the request of the parties, the matter was conducted by Microsoft Teams. 4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 5. Whilst the amended DA remains substantially the same as the original DA, a series of design changes cumulatively resolve the contentions initially raised by the Respondent, which in turn related to impacts associated with the contravention of the floor space ratio, height of building and lot depth development standards, built form and scale, inappropriate character, poor internal amenity, inadequate deep soil and inadequate landscape design amongst other contentions. 6. Of particular note, the amended DA has been reduced in scale to now conform with the maximum height of building development standard and to reduce its total gross floor area. Design amendments have also improved internal amenity, landscape design and the resultant architectural character of the proposal. The final amended DA now comprises a total of 37 apartments. 7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 10. The DA was publicly notified for 30 days from 16 September 2021. Thirty submissions were received by the Respondent. Consequently, I am satisfied, that mandatory community consultation requirements set out at s 2.22 of the EPA Act have been met. 11. The parties agree, and I am satisfied, that s 7.2 of the Biodiversity Conservation Act 2016 (BC Act) applies to the amended DA as the site contains a number of trees that are characteristic of Blue Gum High Forest, which is a Critically Endangered Ecological Community under the BC Act. 12. The Applicant has submitted a Biodiversity Development Assessment Report (dated July 2021) as part of the DA. The parties agree, and I am satisfied, that the amended DA, which incorporates the planting of replacement trees and the retiring of one ecosystem credit (PCT 1237), satisfies the requirements of Part 7 of the BC Act. 13. The parties agree, and I am satisfied, that the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is a relevant environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development - characterised as residential apartment development - is permissible with consent and that the amended DA achieves the objectives of the R4 zone. 14. The parties agree, and I am satisfied, that the western corner of the site is mapped as 'Bushfire Prone Land' under the KLEP. The Applicant has provided a Bushfire Assessment Report and a Bushfire Certificate, which have been prepared by a person recognised by the NSW Rural Fire Service as a qualified bushfire consultant in accordance with s 4.14(1)(b) of the EPA Act. This report and certificate confirm that the amended DA conforms with the specifications and requirements of Planning for Bushfire Protection 2019. 15. The parties agree, and I am satisfied, that all principal development standards of the KLEP have been met by the amended DA, with the exception of cl 4.4 - Floor space ratio - which establishes a maximum floor space ratio of 1.3:1 for the site, and cl 6.6 - Requirements for multi dwelling housing and residential flat buildings - which establishes a relevant minimum lot depth requirement of 30m. 16. In such an instance, cl 4.6(3) of the KLEP requires consideration of a written request from the Applicant demonstrating that compliance with these development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 17. Clause 4.6(4) of the KLEP requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 18. Additionally, cl 4.6(4)(b) of the KLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. 19. As required by cl 4.6 of the KLEP, the Applicant has provided two written requests (prepared by DMPS Planning and dated March 2022) seeking to vary the maximum floor space ratio and minimum lot depth development standards respectively. 20. The parties agree, and I am satisfied, that these written requests adequately justify the variance to the maximum floor space ratio and minimum lot depth development standard for the following reasons. 21. The objectives of the KLEP Zone R4 High Density Residential land use zone include providing for the housing needs of the community within a high density residential environment, and providing for high density residential housing close to public transport, services and employment opportunities. I am satisfied the amended DA meets these objectives. 22. The objectives of cl 4.4 of the KLEP seek to ensure that development density is appropriate for the scale of the different centres within Ku-ring-gai, and to enable development with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship. I am satisfied the amended DA meets these objectives. 23. The objectives of cl 6.6 of the KLEP seek to provide site requirements for development for the purposes of multi dwelling housing and residential flat buildings so as to provide for the orderly and economic development of residential land while maintaining the local character, and to ensure that lot sizes and dimensions of medium and high density residential sites allow for generous landscaped areas and setbacks to ensure the amenity of adjoining properties and to support the desired future character of these areas. I am satisfied the amended DA meets these objectives. 24. The amended DA exceeds the maximum FSR of 1.3:1 by approximately 7.9%, equating to an additional 277sqm of gross floor area and a resultant FSR of 1.4:1. 25. Similarly, the amended DA does not comply with the minimum lot depth requirement of 30m given the site's irregular and unusual geometry. In limited locations, the minimum lot depth variation is minor in nature and up to approximately 2m, representing a maximum departure from the development standard of 6.66%. The variation results from the inherent site characteristics and its geometry, and I note that the total site area (at 2,708.1sqm) comfortably exceeds the minimum lot area development standard of 1,200sqm also contained at cl 6.6 of the KLEP. 26. The DA has been amended to resolve the contentions previously raised by the Respondent, and in particular has now been reconfigured internally to improve internal amenity, the resultant architectural character and expression, and also now provides adequate deep soil and landscape design. I am also satisfied the variation to FSR and minimum lot depth bring with it no material environmental impacts or additional overshadowing. 27. Consequently, I am satisfied the Applicant's two cl 4.6 written requests adequately justify the proposed variations to floor space ratio and minimum lot depth. 28. The parties agree, and I am satisfied, that the site is not identified as land intended to be acquired for public purposes pursuant to cl 5.1 - Relevant acquisition authority - of the KLEP. 29. The parties agree, and I am satisfied, that pursuant to cl 6.2 - Earthworks - of the KLEP, the amended DA will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. I note that the Respondent is satisfied the Applicant's Geotechnical Report, prepared by Alliance Geotechnical and dated 12 June 2019, fulfils the requirements of cl 6.2. 30. The parties agree, and I am satisfied, that pursuant to cl 6.3 - Biodiversity protection - of the KLEP, the site is identified on the Biodiversity Map as containing 'Areas of biodiversity significance', 'Areas of high biodiversity significance' or 'Riparian Land'. I note the Respondent is satisfied that the Applicant's Biodiversity Assessment Report submitted with the DA addresses the relevant matters set out in cl 6.3(3) of the KLEP. 31. The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.5 - Stormwater and water sensitive urban design - of the KLEP. 32. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. Having regard to the historic use of the site for residential purposes, the parties agree the land is unlikely to be contaminated and is suitable for the proposed development. Further investigation is not considered necessary and accordingly, I am satisfied the amended DA addresses the matters outlined in cl 4.6 of SEPP Resilience and Hazards. 33. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX certificate dated 29 March 2022 has been submitted with the DA (as amended). Conditions of consent are imposed to ensure compliance with the BASIX certificate. 34. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the Applicant's architect, Jesus Garcia Quintero (NSW registered architect 10,201), has prepared a Design Verification Statement dated 23 March 2022, fulfilling the requirements of cl 50(1AB) of the EPA Reg 35. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 36. The Court notes that: 1. Pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the consent of the Respondent. 2. The amended DA was uploaded to the NSW Planning Portal on 30 March 2022. 3. The Applicant has filed the amended DA with the Court on 31 March 2022. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA0382/21 and rely on the amended plans and documents listed at condition 1 of Annexure A. 2. Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed amount of $10,000 within 28 days of these orders. 3. The Applicant's written request, pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for floor space ratio as set out at clause 4.4 of the KLEP, is upheld. 4. The Applicant's written request, pursuant to clause 4.6 of the KLEP, seeking to vary the development standard for site depth as set out at clause 6.6 of the KLEP, is upheld. 5. The appeal is upheld. 6. Consent is granted to Development Application DA0382/21 (as amended) for the demolition of existing structures and construction of a residential apartment building comprising 37 apartments, basement car parking, landscaping and associated works at 4A, 6, 6A, 8 and 10 Maclaurin Parade, Roseville, subject to the conditions of consent contained at Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (472175, pdf) Plans (15618867, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2022